Kessler v. Davis

• Decision Date: 10 June 1922
• Docket Number: 23,732
• Citation: 111 Kan. 515,207 P. 799
• Parties: C. A. KESSLER, Appellee, v. JAMES COX DAVIS, as Agent, etc. (substituted for John Barton Payne), Appellant
• Court: Kansas Supreme Court

207 P. 799

111 Kan. 515

C. A. KESSLER, Appellee, v. JAMES COX DAVIS, as Agent, etc. (substituted for John Barton Payne), Appellant

No. 23,732

Supreme Court of Kansas

June 10, 1922

Decided January, 1922.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Railroad Crossing--Certain Special Findings Unsupported by Evidence. In an action against the railroad management because of an automobile being run into at a street crossing it is held that the evidence was sufficient to sustain findings of negligence in causing a train to approach a station and cross a street less than a block from it at too great speed, and in failing to give proper signals but not to sustain findings that the collision was due to defects in the crossing or to unnecessary obstructions to vision on the right of way.

2. SAME--Whether Driver of Auto and Plaintiff Were Engaged in Common Enterprise--Question for Jury. The evidence is held not to show conclusively that the plaintiff and the driver of the automobile were engaged in a common enterprise in such sense as to render the former chargeable with the negligence of the latter, that question, in the circumstances shown, being one of fact to be submitted to the jury.

3. SAME--Contributory Negligence of Passenger in Automobile. Where the driver of an automobile and a person accompanying him are not engaged in a common enterprise and the situation is such that due diligence requires the driver to stop before attempting to cross a railroad track to assure himself that no train is approaching at a dangerous distance, the person accompanying him is not negligent as a matter of law in failing to see that such stop is made.

4. SAME--Contributory Negligence. The evidence is held not to show the plaintiff to have been personally guilty of contributory negligence as a matter of law.

5. SAME--Verdict--Finding in Conflict with Evidence. A verdict for the plaintiff is set aside because it is necessarily founded on a mere estimate of a distance at which an approaching train could be seen from a certain point, which is in conflict with evidence based on actual measurements that are not otherwise contradicted.

6. SAME. Several assignments of error are held not to require a ruling.

W. P. Waggener, J. M. Challis, both of Atchison, and E. L. Burton, of Parsons, for the appellant.

C. E. Pile, and L. E. Goodrich, both of Parsons, for the appellee.

OPINION

MASON, J.:

While C. A. Kessler was riding in an automobile belonging to and driven by Howard Shearhart the car was struck at a street crossing by the engine of a Missouri Pacific passenger train and Kessler was severely injured. He sued the federal agent who was in charge of the road and recovered a judgment, from which the defendant appeals.

1. The defendant asserts that there was no evidence that the railroad management was negligent in any respect. Four forms of negligence were alleged, and the jury specifically found that the defendant was guilty of all of them: "Maintaining an improper crossing; maintaining obstructions on the right of way; approaching an obstructed crossing at excessive speed; failing to sound proper crossing signals." There was evidence that the crossing was not maintained in conformity with the statute, but we find nothing to indicate that the collision was in any degree due to its defects. The petition charged that the view of the track from the street near the crossing was obstructed by unnecessary buildings, trees and fences. The plaintiff testified that his view of the approaching train was cut off by a section house on the right of way and by a curve in the track--that otherwise he could have seen up the track for a mile. This testimony practically took the other obstacles out of consideration in this aspect of the matter. The section house was a necessary and useful building. Its position on the right of way was a matter to be taken into account in connection with the obligation on the part of the railroad management to give signals and with regard to the question of contributory negligence, but we do not think it could alone constitute actionable negligence. (See Corley v. Railway Co., 90 Kan. 70, 71, 133 P. 555.) Therefore, the judgment could not be sustained upon either of the two grounds already discussed. Their elimination, however, does not warrant a reversal if either of the other two grounds of negligence is sustainable, and we think there was evidence to support both. Witnesses estimated the speed of the train at twenty to forty miles an hour. While other evidence tended to weaken this, the matter was one to be submitted to the jury, together with the question whether the rate found was in excess of what was reasonably prudent considering all the circumstances, including the distance of the crossing from the station--some 200 feet. Evidence of witnesses called by the plaintiff seemed to establish that the whistle was sounded as the train approached the station, but whether the conditions called for any further signal, and whether the bell was in fact rung, were questions properly submitted to the jury.

2. The defendant claims that the evidence conclusively established that the collision was due to the negligence of Shearhart the driver of the automobile, which should be attributed to the plaintiff because the two were engaged in a common enterprise. There was evidence to this effect: The plaintiff and Shearhart were neighbors living near Edna. Each had a car. They frequently went to town together, sometimes in one car and sometimes in the other. On the day of the accident Shearhart was going to town and asked the plaintiff to go with him. The plaintiff had some produce he wanted to take in, and accepted the invitation on that account. They reached Edna in the morning and stayed there until four or five o'clock in the afternoon, when they started home, the collision occurring while they were still in...